Weekly Case Summaries: May 27, 2011

Texas Courts of Appeals

Sanchez v. State- 1st COA

05/19/11 : Cite No. 01-10-00433-CR

Issue:

Do statutory county court judges have authority to issue blood search-warrants for execution in another county?

Holding:

No, because there is no statutory authority expressly authorizing the practice. While district judges have authority to issue search warrants for execution within any county in the state, justices of the peace and a county court-at-law judges are restricted to their own counties. Read Opinion.

Commentary:

The reasoning in this opinion is thin as the Legislature has been silent on the issue of the search warrant jurisdiction of a county court at law judge. (On the other hand, the opinion provides substantial dicta upholding the validity of a similar search warrant signed by a district court judge.) But the bigger question is, why wasn't this search upheld under the good faith exception to the statutory exclusionary rule? The affidavit presumably contained a proper statement of probable cause and the officer clearly thought he has a properly signed search warrant. This is just the sort of technical mistake that is remedied by the good faith exception. On remand, shouldn't the trial court still be in a position to hear that argument and approve its application? Hint, hint.

Ex parte Rodriguez – 4th COA

05/18/11 : Cite No. 04-10-00721-CR

Issue:

Did counsel render ineffective assistance because he failed to adequately advise the defendant about the immigration consequences of his plea?

Holding:

No, the defendant failed to establish under Padilla that "the deportation consequence [was] truly clear" for the misdemeanor assault conviction. Moreover, counsel could not recall what he advised the defendant and the affidavits of the defendant and his wife were vague. Read Opinion.

Commentary:

This opinion stands in direct contrast to an opinion from the Houston [1st District] Court of Appeals decision in State v. Golding, No. 01-10-00685-CR, discussed in the 5/20/11 Weekly Case Summaries. PDR on this issue is becoming more and more likely. In both cases, the defendants, unlike the defendant in Padilla, received statutory warnings. That should end the dispute.

Anderson v. State – 7th COA

05/19/11 : Cite No. 07-10-0139-CR

Issue:

Does a trial court commit error by, on its own initiative, preventing the defense from discussing the civil burden of proof during a DWI trial?

Holding:

No, the law allows a trial court to impose reasonable limits on voir dire. Also, the juror questionnaires did not make it into the appellate record to permit the appellate court to determine if the civil burden of proof was mentioned in them. Read Opinion.

Commentary:

The trial judge took an interesting approach by preventing comparison of the various standards of proof (preponderance, clear and convincing and beyond a reasonable doubt) on the ground that it would confuse the jury. Debatable, but the court of appeals ultimately went with the abuse of discretion standard and deferred to the trial court.

Blackshear v. State – 14th COA

05/24/11 : Cite No. 14-09-01059-CR

Issue:

Did the trial court improperly deny a motion for continuance to allow for the preparation of a transcript before a new punishment proceeding held immediately after a mistrial?

Holding:

Yes, in light of the fact that the State offered no witnesses at the first punishment hearing before the first jury but offered five witnesses before the second jury (although they had all provided similar testimony at the first trial's guilt stage). The defense could have used the transcript to impeach the witnesses before the new jury. Read Opinion.

Commentary:

Shouldn't there be some showing of ACTUAL prejudice? By now, the defense could have obtained a transcript of the previous testimony and compared it to testimony in the second punishment hearing. Was there any testimony that could have been subject to impeachment by reference to the first trial? And was it so complex that defense counsel couldn't have recalled the testimony and impeached the witness by referring to the prior testimony without a transcript? Where is the actual harm to the defendant? This opinion pretty much guarantees that a defendant can get a continuance just by asking for a transcript, regardless whether he actually needs it. 

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